In Pennsylvania, Preexisting conditions are not a bar for workers compensation benefits

In Pennsylvania, if you have a pre-existing condition and get hurt at work, you may still be eligible for workers compensation benefits.  Often, injured workers are advised by their employer that they can’t file for workers compensation benefits because they had a pre-existing condition.  That is wrong.  Period.

It is long standing law in Pennsylvania that an aggravation or exacerbation of a pre-existing condition can be a compensable work injury.

An aggravation of a pre-existing degenerative condition constitutes a compensable work injury. SKF USA, Inc. v. Workers’ Compensation Appeal Board (Smalls), 728 A.2d 385, 387 (Pa. Cmwlth. 1999).
To establish a compensable aggravation“the medical evidence [must] establish that the injury materially contributed to the disability rather than the disability resulted from the natural progress [ion] of a pre-existing condition.” Miller v. Workmen’s Compensation Appeal Board (Pocono Hospital) , 539 A.2d 18, 20-21 (Pa. Cmwlth. 1988) (citing Halaski v. Hilton Hotel, 409 A.2d 367 (Pa. 1979)). Whether an incident has materially contributed to the disabling injury “is a question of fact to be determined by the WCJ.” SKF, 728
A.2d at 388.
As you can see, it is well established law.  The litigation involving pre-existing conditions is quite complex.  It goes beyond just proving aggravation, but also that the aggravation is ongoing.  It will take significant lay and medical testimony.  It is critical to have a proven and experienced workers compensation attorney that understands medical evidence.  At Mooney & Associates  we have the experience and the results to prove it.
Usually when we are talking about pre-existing conditions, we frequently see conditions involving the back, knee, and shoulder.  Let me use some of my cases as examples.
Pre-existing Knee Arthritis
I had a case of an injured worker that involved  pre-existing arthritis in her knee.  She is a senior citizen.  She worked full-time for a national retailer.  Four years prior to the work injury, she had treated for knee arthritis pain, including a few injections, but had not treated in the three preceding years.  After she slipped and fell at work, she could not put weight on her knee and was unable to work.  She underwent conservative treatment regiments, such as inflammatory and pain medications, work restrictions, bracing, physical therapy, and additional injections, but all failed to relieve her symptoms.  Her doctor recommended a total knee replacement, due to the extensive arthritis in her knee.  We were unable to settle the case because of the recommendation for and need for a total knee replacement.   We went to decision and won on the merits.  The WCJ granted the claim petition and had to pay my client’s wages while out of work as well as the expenses of a total knee replacement.  She is still currently being paid wage loss benefits.
Pre-existing shoulder
Have a client that worked for the same employer for over 25 years.  He slipped and fell at work and injured his right shoulder.  After an MRI was completed, the insurance carrier denied benefits due to pre-existing right shoulder rotator cuff tears.  The tears were pre-existing, we conceded that.  It was clear by looking at the MRI that the tears were chronic, not acute.  Additionally, during medical testimony, the treating orthopedic surgeon also testified that the tears were degenerative and pre-existing.  However, the doctor also testified that his chronic tears were not symptomatic, and but for the fall, he would have remained non-symptomatic.  Prior to the fall, he never experienced any shoulder pain.  This is not all that uncommon. This gentleman never treated for shoulder pain.   Never even missed a day of work.  He had no idea or no way of knowing he had pre-existing tears.  We eventually won the litigation, the claim petition was granted, and the insurance carrier had to pay wage loss benefits, and still are today, and pay for a total shoulder replacement.  A simple rotator cuff repair could not be performed because of the extensiveness of the tears.
Pre-existing Back
I had a client that had a prior work injury from a different employer that included a low back fusion surgery in 2007.  He recovered from that surgery and had not sought low back treatment since 2008 except for an updated MRI in 2011.   My client injured his low back with a new employer in 2014,  while working at a road construction site.  Given his prior low back surgery, the insurance carrier denied his claim. I positioned his claim well through an extensive medical record review, treating back surgeon’s deposition testimony, and our clients’ testimony on his recovery from his prior injury.   Right after briefs were drafted, but before the decision was issued, we were able to secure a nice lump sum settlement for our client, plus payment and reimbursement of all outstanding medical bills related to his new low back injury.
These are just a few of many examples of cases in which I have either gone to decision or settled claims involving pre-existing conditions.  They are complex.  They involve critical medical testimony.  That’s why it is vital that if you are injured at work and believe you aggravated a pre-existing condition, that you seek an experienced and proven workers compensation attorney to handle your claim.  Don’t let your employer tell you that you can’t get benefits because you had a prior condition.   We have been in the trenches, have won these  types of cases, and settled many others like these.  We certainly aren’t hesitant to go to decision either.
Call Mooney & Associates today for a FREE consultation regarding your work injury.  We have 15 offices throughout Central Pennsylvania.  I will meet with you at the offices nearest to you.  Call today at 717-200-HELP or 1-877-632-4656.  You can also email me at mab@mooney4law.com.

Injured Workers Should Be Aware of Settlement Offers

It is that time.  With 2018 on the horizon, businesses are trying to get some loose ends tied up before the calendar turns.  Workers compensation insurance carriers are the same way.   They like to close out as many claims as possible to not carry them into the next year.  That means you may get an offer to settle your workers compensation claim.

My advice — exercise caution.  Call Mooney & Associates for a FREE consultation before setting your workers compensation claim.  Why?

1.  Are you ready to settle your claim, medically speaking.  Are you done with surgeries?  Do you need additional injections?  Are you getting better?  Are you going to have permanent work restrictions?  What are your costs for future medical treatment?  These are all very important questions that need to be discussed and thought through and can impact both the feasibility  of settlement and value of your case.

2.  Is it fair?  Most times, what an insurance carrier is going to offer you, is below what is really the settlement value of your case.   Listen, their number one concern is to get out of each claim as cheaply as possible.  You and your future are not their concern.  Our concern is you and ensuring you are getting the fairest settlement possible.  We will work hard to maximize your settlement value.  Every injury is different.  Every story is different.  Every carrier is different.  Every employer is different.  There are a ton of factors that go into what is ‘fair and reasonable’ and that is why it is absolutely paramount for you to get expertise advice form an experienced workers compensation professional.

3.  Are there other issues going on in your case?  What are your future medical costs?  Do you have outstanding medical bills not being paid by the insurance carrier?  Did you pay for prescriptions or doctor visits and paid out of your pocket?  Is there a subrogation lien with your health insurance?  Is there a subrogation lien from Medicare or Medicaid?  Are there any applicable offsets?  These issues can get quite complex.

4.  Is it the right time?  This is the most important question when settling your claim.  It may not be the right time for you.  We will sit down with you, listen to your concerns, become familiar with your claim, then provide our advice.  I have advised hundreds of clients to NOT settle at a particular time.  It is a very important and personal decision and we take that time to discuss it with you.  What about social security disability?  Should I apply before settling or after settling?  Am I eligible for social security disability?  Is it an option for me?  Will I have to resign from my job?

5.  Remember, it is final.  In most circumstances, when an insurance carrier settles a claim, it is completely settled.   What does that mean?  It means your entitlement to wage loss benefits and any future medical benefits ends completely.  Any future medical costs for your work injury becomes your sole and exclusive responsibility.  That is precisely why it is such an important decision.  Just because you settle does not mean your private health insurance, Medicare, or Medicaid will pick up your costs related to your work injury.    There are hybrid type settlements that fully leave medicals open or leave medicals open for a limited purpose, but they are certainly the minority type of settlement in workers compensation.  Given the significant impact that settlement has on your rights under the Pennsylvania Workers Compensation Act, speaking with an experienced workers compensation attorney is a no-brainer.

Mooney & Associates had fifteen office locations through Central Pennsylvania.  We can meet you at the location closest to you.  We have full staffed offices, open Monday through Friday, in Chambersburg, Shippensburg, Carlisle, Harrisburg, York, Gettysburg, and Hanover.  Additionally, not only can we handle Pennsylvania workers compensation cases, but we can also handle Maryland Workers Compensation cases.

Call today for a FREE consultation at 171-200-HELP or 1-877-632-4656.  You can also email me directly at mab@mooney4law.com.  Visit us on the web at http://www.mooney4law.com.

 

Injury Description is important in Workers Compensation

Pennsylvania Workers CompOne of the more important, and often overlooked, aspects of a workers compensation claim in Pennsylvania is the description of injury.  More times than not, if you get hurt at work and your employer accepts your work injury, the description of your injury provided is nothing more than a ‘strain/sprain’ or ‘contusion’, whether it be to your neck, back, shoulder, etc. . .  Often times, it is simply not accurate.

So why is that the description provided on the PA Department of Labor & Industry forms that you get?  Could be a few reasons.  First, many insurance carries only accept sprain/strains and contusions.  Second, your actual injury may have just happened and the actual medical diagnosis is unclear.  Third, it may actually be accurate.

More than likely, the first two reasons are applicable.  Many insurance carriers do not accept anything outside those generalized descriptions.  There is a reason for that.  By accepting only generalized descriptions of injury like a strain/sprain, it provides the insurance carrier leeway in denying future medical treatment.  For example, if you have an accepted left shoulder strain, but you recently had a left shoulder MRI that indicated a rotator cuff tear, the insurance carrier may deny surgery.  They will deny surgery based on the fact that they only ever accepted a left shoulder strain/sprain, not a rotator cuff tear.    Another frequent example is a head injury.  Often times, the accepted injury for a head injury is a ‘head contusion’.  That provides leeway for the insurance carrier to deny treatment for concussion and post concussion syndrome.  They often do as well.    Continue reading

Amazon employee killed in accident at Amazon Warehouse in Carlisle

An Amazon Warehouse employee was killed in a work accident recently.

The is the second death at the Middletown/Carlisle facility since 2014.  If you recall, an employee was killed in 2014 in a pallet jack accident.

The Occupational Safety and Health Administration is investigating a death at an area Amazon facility.

Devan Michael Shoemaker, 28, of Millerstown, died Tuesday of multiple traumatic injuries at the Amazon warehouse on Allen Road in South Middleton Township.

Cumberland County Coroner Charles Hall confirmed Shoemaker died after the 5:15 p.m. accident in which he was run over while helping the driver of a truck tractor hook up a trailer.

Amazon had already been warned and fined by OSHA in 2016 at it’s New Jersey facility for failure to address workplace safety concerns.  I’ve written in this issue time and time again.  Big conglomerates like Amazon consistently skirt safety issues for lower operating costs, while the employees are the ones to suffer, often from devastating work injuries, and in this case, even death.

I have represented many injured workers at Amazon in Carlisle.  With Central Pennsylvania’s warehouse growth in full swing, more and more warehouse type injuries are occurring.  Check out my previous article on common warehouse injuries.

If you work at one of the many warehouse or distribution center in Central Pennsylvania and have sustained a work injury, don’t hesitate to call Mooney & Associates to protect your right and benefits you may be entitled to under the Workers Compensation Act.  Places of employment like this often try and intimidate injured employees, downplay injuries, deny injuries, terminate employment when injured, or have injured workers sign forms quickly.   Get represented!  Call Mooney & Associates for a FREE CONSULTATION AT 717-200-HELP or 1-877-632-4656.

In Pennsylvania, do I have to work light duty when hurt at work?

Under Pennsylvania law, do I have to return to light duty when I am hurt on the job.  Why would an injured worker ask that?  Well, it isn’t that these clients are lazy, not at all.  Many times, an injured worker simply wants appropriate time to recover and heal from the work injury.

Legal ramifications for turning down light duty

Turning down available light duty is not a wise decision and can put workers compensation benefits at risk.  In Pennsylvania, your employer has the right to offer you modified duty employment.  Many employers in Central Pennsylvania do offer light-duty work assignments or alternate work programs. The critical thing to remember is that both the employer and the injured employee must act in good faith in offering and responding to an offer of light-duty work.  Failure to do so can result in a suspension or reduction in you wage loss benefits. Continue reading

Pennsylvania Workers Compensation and travel expenses to doctor

Either way you look at it, a work injury can be financially disturbing for many.  Many injured workers have their injury denied, meaning they are receiving no income while they litigate their claim.  Others have an accepted claim, but for medical benefits only, which again means, no wage loss benefits while the claim is being litigated.  Others may be receiving benefits, but at a reduced rate from their regular, average weekly wages.  Often, it causes financial hardship.

Regardless, work injuries often times require significant medical treatment.  That means trips back and forth to the doctors, to pain management, to physical therapy, and to the pharmacy.  Unfortunately, there is a misperception out there that an injured worker is entitled to reimbursement of travel expenses back and forth for their treatment.    The injury isn’t my fault, why should I have to pay for my own gas to and from treatment.  Great argument.  And I agree wholeheartedly.  However, in Pennsylvania, it is not a reality.  Continue reading

How long does Workers Compensation litigation take in Pennsylvania

An obvious question asked by many clients is just how long does Workers Compensation litigation take in Pennsylvania. It is a concerning issue for many injured workers because they are either off work with a denied injury or off work and the insurance carrier has accepted the injury, but only for medical purposes, not wage loss. That means that the injured worker is out of work, often times with no alternative sources of income.

In Pennsylvania, a typical time line for workers compensation litigation extend from 8 months to 12 months. Let’s walk through the time line to illustrate why the lengthy time line exists.

First, from the time you file a claim, it may be 15-45 days before a hearing is scheduled.  Depending upon what Judge is assigned to your case, you may or may not testify at the first hearing. I advise my clients on that issue immediately (So there is at minimum 1 month) Continue reading

Pennsylvania Supreme Court strikes down IRE provisions in Workers Compensation Act

Attorneys across the Commonwealth of Pennsylvania have been waiting for the Pennsylvania Supreme Court to clarify the status of the Impairment Rating Evaluation section of the Act, since the Commonwealth Court struck down provisions and remanded the case back to a Workers Compensation Judge.   The PA Supreme Court issued it’s decision as I sat in a workers compensation hearing around 11:30 AM this morning.   In Protz v. WCAB (Derry Area School District), No. 6 WAP 2016, the Court struck down the IRE provisions of the Act as unconstitutional in it’s entirety.

To help you understand, let me first explain the IRE process.  First, and foremost, it is a process used to limit injured worker wage loss benefits.  The injured worker is examined by a doctor chosen by the Commonwealth for what is called an impairment rating evaluation.  The IRE exam is solely used to establish a whole body impairment.  If the IRE examination finds an injured worker to have 50% or less whole body impairment from the work-related diagnoses, then wage loss benefits are capped to 500 weeks (about 9 1/2 years).   A request for an IRE examination by the insurance carrier cannot occur until an injured worker has received at least 104 weeks (2 years) of total disability compensation. Don’t confuse this examination with an IME  (defense) examination.  They are entirely different.  IRE examinations are nothing more than a tool for an insurance carrier to limit wage loss benefits of the injured worker.  Additionally, the provision is also unfair because it is nearly impossible to get a 50% or more whole impairment rating evaluation, outside completely catastrophic injuries. Continue reading

In Pennsylvania, what happens to Medicare Set Aside Funds

You may have heard about Medicare Set Aside agreements when it comes to Workers Compensation lump sum settlements.  They are complex and confusing too many.  Let me try and help explain a little about this complex area of law.

First, when is a Medicare Set Aside agreement required as part of a structured workers compensation settlement?  Generally, with a worker’s compensation settlement, federal law prohibits Medicare from paying for injury-related medical expenses or medications that an employer is responsible to pay.  In essence, other insurance coverage exists for those medical expenses.  To achieve that purpose, Federal government regulations require that a portion of settlement funds be “set-aside” in an account to pay for future medical expenses related to the work injury. So what specifically triggers this process?  Here are the general criteria when a settlement should be submitted for CMS review.

CMS will only review new WCMSA proposals that meet the following criteria:

  • The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or

  • The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00

So, what is the important words in here — “is” and reasonable Continue reading

Understaffing at Pennsylvania Nursing Homes cause work injuries

back-work-injuryWe have seen the various reports from time to time on the overall impact of understaffing at Pennsylvania Nursing Homes.  In this report of 18 of Pennsylvania’s most understaffed nursing care facilities, ten of the eighteen are owned and operated by Manor Care, and three of the 18 are right here in the mid-state, in Chambersburg, Carlisle, and New Bloomfield in Perry County.  These reports generally focus around the sub-standard care is causes to the patients who reside or are being cared for in the facilities.  Rightfully so.

The untold stories of understaffing in these care facilities is the risk it puts on nursing home employees.  I get my fair share of injured nursing home employees.  Many times, understaffing is the culprit of these injuries.  Most common are lifting injuries.  These injuries usually occur when lifting patients.  They can occur due to lack of lifting equipment and understaffing.  Frequently we see back, neck, and shoulder injuries when it comes to lifting residents.   These injuries also occur due to lack of or sped up training due to understaffing.  It isn’t just sped up training though, many time it can be faulted to poor training programs.

We also see CNAs and LPNs injured by violent acts of residents.  Again, many times it is due to understaffing for patients with medical conditions that cause either violent tendencies or inability to understand or control reaction.  Fortunately, health care employees are speaking up regarding violence in health care facilities and demanding protections.  OSHA is considering new workplace violence standards.

We also see injuries occur due to lack of staffing because of employee fatigue.  Patient care is not easy.  It can be quite taxing.

Health care can be a quite rewarding career field.  Unfortunately, it is also a dangerous field, as health related work injuries now rank as high as construction work injuries.   The focus of understaffing at nursing homes should turn to patient care and employee safety.   For more information on workers safety in nursing homes, visit the OSHA website here.

Meanwhile, if you work in a nursing home in Pennsylvania and you have been hurt at work, protect your rights and potential entitlement to benefits.  Too many injured CNAs stay silent out of fear of their employer.  You don’t need to do that. Contact Mooney & Associates today for a FREE CONSULTATION.  Let us help protect you!  Call today at 717-200-HURT.